Humboldt Gen. Hosp. v. Sixth Jud. Dist. Ct.

132 Nev., Advance Opinion 53
IN THE SUPREME COURT OF THE STATE OF NEVADA
HUMBOLDT GENERAL HOSPITAL; No. 65562
AND SHARON MCINTYRE, M.D.,
Petitioners,
vs. FILED
THE SIXTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, JUL 28 2016
IN AND FOR THE COUNTY OF LE
T • E K. LINDEMAN
HUMBOLDT; AND THE HONORABLE BY A
DE • i fY ERK
MICHAEL MONTERO, DISTRICT
JUDGE,
Respondents,
and
KELLI BARRETT,
Real Party in Interest.
Original petition for a writ of mandamus challenging a district
court order denying a motion to dismiss.
Petition granted.
Pollara Law Group and Dominique A. Pollara, Sacramento, California,
for Petitioners.
David Allen & Associates and David Allen, Reno,
for Real Party in Interest.
BEFORE THE COURT EN BANC.
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OPINION
By the Court: HARDESTY, J.:
NRS 41A.071 requires that a medical expert affidavit be filed
with "medical malpractice" claims.' Real party in interest Kelli Barrett
filed a complaint without an expert affidavit against petitioners Humboldt
General Hospital and Sharon McIntyre, M.D., that included a battery
claim based on an alleged lack of informed consent. In this case, we
determine whether a battery claim against a medical provider based on an
allegation of lack of informed consent is subject to the NRS 41A.071
medical expert affidavit requirement.
We conclude that allegations raising the scope of informed
consent rather than the absence of consent to a medical procedure, even
when pleaded as a battery action, constitute medical malpractice claims
requiring a medical expert affidavit. Accordingly, because Barrett's
complaint raises the scope of informed consent for the medical procedure,
but does not allege a complete lack of consent, Humboldt and Dr.
McIntyre's motion to dismiss Barrett's battery claim should have been
granted. We thus grant the petition.
FACTS AND PROCEDURAL HISTORY
Barrett had an intrauterine device (IUD) surgically implanted
by Dr. McIntyre at Humboldt General Hospital. Approximately one year
later, Barrett received a letter from Humboldt stating that the IUD was
not approved by the Federal Drug Administration (FDA). Her IUD was
1 The Legislature amended NRS 41A.071 during the 2015 legislative
session. 2015 Nev. Stat., ch. 439, § 6, at 2527. Any discussion in this
opinion related to this statute refers to the 2002 version of the statute in
effect at the time real party in interest filed her complaint.
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not FDA approved because it was shipped from Finland to a Canadian
pharmacy rather than to a location in the United States. However, the
implanted IUD was identical to FDA-approved IUDs and was
manufactured at the same plant in Finland.
Barrett filed a complaint without a supporting medical expert
affidavit alleging negligence and battery claims against Dr. McIntyre and
Humboldt. In her negligence claim, Barrett alleged that Dr. McIntyre and
Humboldt "had a duty to provide [her] with care, treatment, medications
and medical devices consistent with state and federal law." And, in her
battery claim, Barrett alleged that Dr. McIntyre and Humboldt "knew or
reasonably should have known that. . . Barrett did not consent to the
implantation in [her] body of said IUD which lacked FDA approval."
Dr. McIntyre and Humboldt moved to dismiss Barrett's
complaint based on NRS 41A.071's requirement that an expert affidavit be
filed with medical malpractice actions. The district court granted the
motion to dismiss the negligence claim, finding that an expert affidavit
was required, but denied the motion as to the battery claim, finding that
"it does not appear beyond a doubt that" Barrett needed to include an
affidavit with her battery claim. Dr. McIntyre and Humboldt then
petitioned this court for a writ of mandamus directing the district court to
dismiss Barrett's battery complaint under NRS 41A.071.
DISCUSSION
Whether a claim under the informed consent doctrine must be
pleaded as a tort action for negligence, rather than as one for battery, is
an issue of first impression in Nevada. Because Barrett generally
consented to the procedure performed, and the operative facts implicate
the scope of informed consent, we conclude that Barrett's battery claim is
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actually a medical malpractice claim requiring a medical expert affidavit
under NRS 41A.071.
Writ of mandamus
"Normally, this court will not entertain a writ petition
challenging the denial of a motion to dismiss," Buckwalter v. Eighth
Judicial Dist. Court, 126 Nev. 200, 201, 234 P.3d 920, 921 (2010), but we
may do so when "(I) no factual dispute exists and the district court is
obligated to dismiss an action pursuant to clear authority under a statute
or rule; or (2) an important issue of law needs clarification and
considerations of sound judicial economy and administration militate in
favor of granting the petition," State v. Eighth Judicial Dist. Court, 118
Nev. 140, 147, 42 P.3d 233, 238 (2002). Furthermore, this court may
consider writ petitions that present matters of first impression that may
be dispositive in the particular case. Otak Nev., LLC v. Eighth Judicial
Dist. Court, 129 Nev., Adv. Op. 86, 312 P.3d 491, 496 (2013).
Here, there is no factual dispute regarding the absence of an
expert medical affidavit filed with the complaint. Further, this case
presents an important issue of law concerning the right to pursue a
battery claim in a medical malpractice action that implicates the scope of
informed consent. Because this issue is likely to recur, as evidenced by
other writ petitions filed with this court seeking similar relief, and may be
dispositive of the pending case, we exercise our discretion to entertain the
merits of this writ petition.
Expert affidavit requirement in medical malpractice claims
The issues raised in this case present purely legal questions,
primarily regarding statutory construction, so we conduct a de novo
review. Zohar v. Zbiegien, 130 Nev., Adv. Op. 74, 334 P.3d 402, 405
(2014). "If an action for medical malpractice. . . is filed in the district
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court, the district court shall dismiss the action, without prejudice, if the
action is filed without an affidavit." NRS 41A.071; 2 see also Washoe Med.
Ctr. v. Second Judicial Dist. Court, 122 Nev. 1298, 1306, 148 P.3d 790, 795
(2006) ("We conclude that when a plaintiff has failed to meet NRS
41A.071's expert affidavit requirement, the complaint is void ab initio and
must be dismissed, without prejudice, and no amendment to cure an NRS
41A.071 defect is allowed."). NRS 41A.009 (1985) defines "[m]edical
malpractice" as "the failure of a physician [or] hospital . . . in rendering
services, to use the reasonable care, skill or knowledge ordinarily used
under similar circumstances."
Initially, we examine whether informed consent issues
generally constitute medical malpractice, such that NRS 41A.071 requires
a medical expert affidavit to be filed with a complaint. Next, we consider
2 Many statutes in NRS Chapter 41A were amended during the 2015
legislative session. See 2015 Nev. Stat., ch. 439, §§ 1-13, at 2526-29. NRS
41A.071 now states, in pertinent part: "If an action for professional
negligence is filed in the district court, the district court shall dismiss the
action, without prejudice, if the action is filed without an affidavit."
(Emphasis added.) NRS 41A.015 defines "[p]rofessional negligence" as
"the failure of a provider of health care, in rendering services, to use the
reasonable care, skill or knowledge ordinarily used under similar
circumstances by similarly trained and experienced providers of health
care." The amended language does not apply here because the
amendments became effective after the district court entered its order in
this matter, and our reference to the statutes in this section are to those in
effect at the time of the cause of action. See 2015 Nev. Stat., ch. 439, § 13,
at 2529. However, we note that the Legislature repealed NRS 41A.009's
definition of "medical malpractice" and moved much of the operative
language to the "professional negligence" definition stated above. See NRS
41A.009 (1985); NES 41A.015 (2015); 2015 Nev. Stat., ch. 439, §§ 6, 12, at
2527, 2529.
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whether a battery claim can be maintained when the claim arises out of a
lack of consent.
Issues of informed consent typically constitute medical malpractice claims
NRS Chapter 41A governs medical malpractice actions in
Nevada. Within that statutory scheme, NRS 41A.110 establishes when
informed consent is conclusively given by a patient. As applicable here, a
licensed physician has conclusively obtained a patient's consent for a
medical procedure if a physician has explained in general terms, without
specific details, the procedure to be conducted. NRS 41A.110.
Furthermore, this court has previously recognized that
informed consent is generally a matter of medical malpractice. In
Bronneke v. Rutherford, while considering what standard of care governs
chiropractic informed consent cases, we concluded that "the professional
standard, requiring expert testimony as to the customary disclosure
practice, applies to chiropractors." 120 Nev. 230, 238, 89 P.3d 40, 46
(2004). Under the professional medical standard, "the physician must
decide whether the information is material and should be disclosed to the
patient." Id. at 233, 89 P.3d at 43. This standard imparts a duty upon the
physician to "disclose information that a reasonable practitioner in the
same field of practice would disclose . . . 1, and] the professional standard
must be determined by expert testimony regarding the custom and
practice of the particular field of medical practice." Smith v. Cotter, 107
Nev. 267, 272, 810 P.2d 1204, 1207 (1991). As a result, we concluded that
"the failure to obtain a patient's informed consent is a malpractice issue."
120 Nev. at 238, 89 P.3d at 446.
Bronneke conforms to the general rule in the United States: "a
claim under the informed consent doctrine must be pled as a tort action for
negligence, rather than as one for battery or assault." Mole v. Jutton, 846
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kryl,
A.2d 1035, 1042 (Md. 2004); see also Cobbs v. Grant, 502 P.2d 1, 8 (Cal.
1972) (adopting the majority position that "appears to be towards
categorizing [the] failure to obtain informed consent as negligence"); Dries
v. Gregor, 424 N.Y.S.2d 561, 564 (App. Div. 1980) ("We believe that
medical treatment beyond the scope of a patient's consent should not be
considered as an intentional tort or species of assault and battery. . .
Informed consent claims usually require a medical expert affidavit, but
claims that a treatment or procedure completely lacked patient consent do
not
Barrett argues that insertion of the non-FDA approved IUD
without her consent constitutes a true battery claim that does not require
an expert medical affidavit. In Bronneke, we suggested that a battery
claim may not exist when a question of informed consent is presented. 120
Nev. at 234-35, 89 P.3d at 43 (concluding that because the patient
impliedly consented to the treatment, allowing "an eleventh-hour
amendment to the complaint to add a battery claim" would be futile).
However, we recognize that when consent to a treatment or procedure is
completely lacking, the justifications supporting a medical expert affidavit
are diminished.
3 There is a minority position where "[t]he earliest cases treated this
as a matter of vitiating the consent, so that there was liability for battery."
Cobbs v. Grant, 502 P.2d 1, 8 (Cal. 1972) (internal quotations omitted).
However, courts subsequently "began to, . . recognize[ ] that this was
really a matter of the standard of professional conduct" and that "the
action. . . is in reality one for negligence in failing to conform to the proper
standard." Id. (third alteration in original). Some jurisdictions still
maintain this distinction. See, e.g., Montgomery v. Bazaz-Sehgal, 798 A.2d
742, 748 (Pa. 2002) ("[T]his Court has made clear on repeated occasions
over a period of several decades that a claim based upon a lack of informed
consent involves a battery. .").
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"A battery is an intentional and offensive touching of a person
who has not consented to the touching," and "[i]t is well settled that a
physician who performs a medical procedure without the patient's consent
commits a battery irrespective of the skill or care used." Conte v. Girard
Orthopaedic Surgeons Med. Grp. Inc., 132 Cal. Rptr. 2d 855, 859 (Ct. App.
2003). Courts typically only allow consent issues to proceed as battery
claims in "those circumstances when a doctor performs an operation to
which the patient has not consented. When the patient gives permission to
perform one type of treatment and the doctor performs another, the
requisite element of deliberate intentS to deviate from the consent given is
present." Cobbs, 502 P.2d at 8; see also Rice v. Bra/el, 310 P.3d 16, 19
(Ariz. Ct. App. 2013) (same); Shuler v. Garrett, 743 F.3d 170, 173 (6th Cir.
2014) (noting that in Tennessee "the threshold question in an informed
consent case is whether the patient's lack of information negated her
consent, the question in a medical battery case is much simpler: Did the
patient consent at all?"); Brzoska v. Olson, 668 A.2d 1355, 1366 (Del. 1995)
("[T]he tort of battery is properly limited in the medical/dental setting to
those circumstances in which a health care provider performs a procedure
to which the patient has not consented."); Mole v. Jutton, 846 A.2d 1035,
1042 (Md. 2004) ("[A] claim under the informed consent doctrine must be
pled as a tort action for negligence, rather than as one for battery or
assault.").
The distinction between informed consent and battery claims
is based on the concept that a doctor may show, in informed consent cases,
"that the disclosure he omitted to make was not required within his
medical community. However, expert opinion as to [the] standard [of care]
is not required in a battery count, in which the patient must merely prove
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failure to give informed consent and a mere touching absent consent."
Cobbs, 502 P.2d at 8; see also Bronneke, 120 Nev. at 238, 89 P.3d at 45-46
(stating that expert opinions are necessary in informed consent and
medical malpractice cases because juries, "as general laypersons, would
not know the customary practice in the profession"). Thus, when consent
is so lacking that a trier of fact may find that "the requisite element of
deliberate intent [for battery] . . . is present," id., the justification for an
affidavit is diminished because an expert's opinion setting forth the
standard of care and a good-faith basis for the action is unnecessary.
Zohar, 130 Nev., Adv. Op. 74, 334 P.3d at 405 ("NRS 41A.071's affidavit
requirement was implemented to lower costs, reduce frivolous lawsuits,
and ensure that medical malpractice actions are filed in good faith based
upon competent expert medical opinion " (internal quotations omitted)).
Accordingly, where a plaintiff claims not to have consented at
all to the treatment or procedure performed by a physician or hospital, we
conclude that such an allegation constitutes a battery claim and thus does
not invoke NRS 41A.017A's medical expert affidavit requirement.
However, consistent with conclusively obtaining a patient's consent under
NRS 41A.110, where general consent is provided for a particular
treatment or procedure, and a question arises regarding whether the scope
of that consent was exceeded, an expert medical affidavit is necessary. See
Cobbs, 502 P.2d at 8.
Barrett's complaint
Barrett's complaint does not allege that the IUD procedure
completely lacked her consent Instead, she alleges in her battery claim
that she generally consented to the procedure but not to an IUD that
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lacked FDA approval. See Brzoska, 668 A.2d at 1366 ("A patient's consent
is not vitiated, however, when the patient is touched in exactly the way he
or she consented."). As a result, her battery allegation presents a question
that requires an expert's opinion regarding the standard of care and the
scope of consent with respect to the use of an IUD device supplied by the
same manufacturer but shipped in a way that lacked FDA approval.
Accordingly, we conclude that Barrett's battery claim is actually a medical
malpractice claim governed by Chapter 41A. Therefore, the district court
erred by denying Humboldt's and Dr. McIntyre's motion to dismiss
Barrett's battery claim because a medical expert affidavit was not filed
with the claim. See Washoe Med. Ctr., 122 Nev. at 1306, 148 P.3d at 795.
CONCLUSION
For the reasons set forth above, we grant Humboldt's and Dr.
McIntyre's petition for extraordinary relief as to Barrett's battery claim
and direct the clerk of this court to issue a writ of mandamus instructing
the district court to set aside its earlier order, and grant Humboldt's and
Dr. McIntyre's motion to dismiss in its entirety.
Hardesty
We concur:
, C.J.
Parraguirre
Saitta
Gibbons
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